Tuesday, April 26, 2005

Freedom of Speech

The author of the Forbes article would have us believe that if there is a limitation on some types of speech then there is no freedom of speech. That, at least, is the only reasonable reading of the argument. He argues that "free speech is not among those rights" protected in Europe and then supports his assertion with reference to proposed laws in Croatia against "spreading racism and xenophobia," a law in Sweden a law barring "inflammatory" remarks directed at racial or religious groups, or homosexuals, and their ilk.

Using the same reasoning, if it is illegal to shout "Fire!" in a movie theatre in, say, the United States, then that country has no freedom of speech either. But just as the latter proposition is absurd, so is the former. That there exist limits on speech does not entail that freedom of speech does not exist, it merely demonstrates what we all know about freedoms in general, that one person's freedoms end when they begin to impinge on another person's freedoms.

The author is not above sleight of hand in order to advance his case. Responding to a clause in the European Charter asserting that nothing in the Charter implies any right to conduct "aimed at the destruction of any of the rights and freedoms recognized in this Charter" he incorrectly infers that "if someone were to mount a campaign favoring the death penalty... this would plainly constitute an effort to destroy rights recognized in the Charter--an activity characterized as an 'abuse of rights'."

But not having a right to do something is not the same as being prohibited from doing something. It is and will remain legal in Europe to campaign for the death penalty - but the fact of your campaigning for the death penalty is not protected by any special right to do so; your desire to oppose the Charter does not over-ride the rights that other people enjoy by virtue of the charter. Your efforts to amend the charter, in other words, cannot include violations of the charter.

It is worth noting that what appears to bother the author most about the European Charter is not the rights that it supposedly does not protect but rather the rights it does protect - rights that Americans do not have (and that one presumes the author thinks they should not have): "rights for children, for women (they have a right to preference in areas wherein they are underrepresented), for asylum-seekers, for workers and employers (both are said to have a right to collective bargaining), for murderers (they have a right not to suffer capital punishment) and for the disabled. There is a right to marry, a right to privacy, a right to a good education and a lot more--including a right to freedom of expression."

It is arguable - and I would argue - that a Charter such as Europe's results in a population that is more free, not less free, than under the American Bill of Rights. For one thing, the much vaunted American first amendment the author talks about ends at the workplace door. Try exercising your rights as a Walmart employee and you will be shown that door. In Europe, with workers' rights protected, your freedom of speech is not for sale for the cost of a meal. Moreover, in the United States, with no protection against those who foment prejudice and hate, people in minority groups live in fear, never knowing when the next hate-mongering charlatan is going to push someone into some gay-bashing, some abortion clinic bombing, some lynching.

Americans are of course free to define and exercise their freedoms in whatever manner they see fit, and I have no quarrel with the way Americans have chosen to shape their society. However, to assert in what ought to be a reputable publication that other nations do not value freedom because they define it differently is to engage in nothing more than the lowest sort of pandering, the fostering of a prejudice and ignorance about these other nations for which Americans have, quite rightly, become altogether too well known.

2 comments:

Hmm, lessee, As I'm the first actual poster to this comment that's not spam, I'm gonna have to disagree. The fire in a crowded theater bit creates an immediate possibly fatal problem in the form of a stampede to get out of the theater. That is why it is illegal. However, the things that are illegal in the EU do not pose an immediate threat. Now, if someone uses those things to incite a riot, then of course they can be charged, but saying those things themselves should not be illegal.

Sorry about the spam. It has been deleted. It all appeared today, as did your comment, suggesting that for some reason there is renewed attention being paid to this two year-old post.

The theatre thing: shouting 'the theatre is on fire' is illegal because it causes harm. There is no need that the harm be immediate. If you set a trap and it is not sprung for two years, you are still breaking the law even though the harm was not immediate.

The harm caused by racism and xenophobia may not be immediate, and a specific action in and of itself may not even be sufficient to cause harm, but it it is reasonable and foreseeable that harm is eventual and cumulative, which is why it is reasonable to make them illegal.